Welsh v. Martinez et al
ORDER denying 54 defendants' motion for protective order; granting 61 Welsh's motion to compel and for sanctions; and denying as moot 66 Welsh's request for leave to reply. See order for details. Signed by Magistrate Judge Nicholas P. Mizell on 11/18/2022. (BB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No. 2:22-cv-216-JLB-NPM
WILLIAM V. MARTINEZ, JR. and
Before the court are defendants’ motion for protective order (Doc. 54) and
plaintiff D’Anna Welsh’s motion to compel discovery responses and for sanctions
(Doc. 61). For the reasons described below, defendants’ motion is denied, and
Welsh’s motion is granted.
Background and Procedural Posture
The facts here are extensive and have been summarized by the court in a
previous order, (see Doc. 41 at 2-4), so they will not be repeated here in full. But for
present purposes, Welsh is a judgment-creditor as to a $2,360,000 judgment against
Dr. William Martinez entered by the Connecticut Superior Court in 2012. (Doc. 131 at 1 ¶ 2). To date, Dr. Martinez has not paid any of this judgment, and he is in
contempt with the Connecticut Superior Court. (Doc. 13-1 at 104-06). Welsh
brought this action alleging that, rather than pay the judgment, Dr. Martinez
transferred funds to Kelly Martinez in violation of Florida’s Uniform Fraudulent
Transfer Act (“UFTA”). (See generally Doc. 27). Welsh has also filed three other
lawsuits of a related nature in state and federal courts. (Doc. 54 at ¶ 1).
On June 29, 2022, defendants moved to dismiss Welsh’s first amended
complaint. (Doc. 40). Their arguments were two-fold: (1) that Welsh failed to plead
fraud with particularity as required by Rule 9(b), and (2) she failed to state a cause
of action because all assets that allegedly were fraudulently transferred are exempt
from the UFTA. (Id.) Later, on August 5, 2022, Welsh served both defendants with
requests for production and interrogatories. (Doc. 61-1). Around two weeks after
that, defendants filed a motion for protective order. (Doc. 54). Therein, they claim
that Welsh’s discovery requests are unduly burdensome because she has served
similar discovery requests in each of her four related cases against defendants to
which they have already responded. (Id. at ¶¶ 1, 3-4). They also argued that
answering Welsh’s discovery would be pointless since their motion to dismiss was
pending, which they felt would dispose of this case. (Id. at 2, 5). They asked for a
stay of deposition discovery until resolution of the motion to dismiss, and for their
responses to written discovery to be due thirty days later.
With their motion for protective order pending, defendants never answered
Welsh’s interrogatories or responded to her request for production. So she moved to
compel them. (Doc. 61). And while the discovery motions were pending, the court
summarily denied defendants’ motion to dismiss because Rule 9(b)’s heightened
pleading requirements do not apply and the potential viability of an affirmative
defense does not make for a failure to state a claim. (Doc. 70).
A. While Moot, the Motion for Protective Order was also Meritless
Because the court denied the motion to dismiss, the request to stay deposition
discovery and delay written discovery responses until after its resolution is moot.
But even if the motion to dismiss was still pending, the request to delay discovery
would still be rejected.
As an initial matter, the motion failed to comply with Middle District of
Florida Local Rule 3.01(a). This rule provides that “[a] motion must include . . . a
concise statement of the precise relief requested, a statement of the basis of the
request, and a legal memorandum supporting the request.” M.D. Fla. Local Rule
3.01(a). Defendants’ motion falls well short of this standard. It fails to cite any
evidence or authority in support of its request, and even fails to attach or discuss
with any reasonable specificity the discovery requests at issue. It is due to be denied
on this basis alone.
The grounds for the motion also lacked any merit. There is no general rule
that discovery be stayed while a pending motion to dismiss is resolved. United States
v. Physician Surgical Network, Inc., No. 6:20-cv-1582-WWB-EJK, 2022 WL
6163122, *1 (M.D. Fla. Oct. 7, 2022). Indeed, such requests “are generally
disfavored because they unreasonably delay the progress of the case and impede the
Court’s ability to manage discovery.” Tech Traders, LLC v. Insuladd Env't, Ltd., No.
6:18-cv-754ORL40GJK, 2018 WL 8369219, *1 (M.D. Fla. Oct. 5, 2018). The party
moving to stay discovery bears “the burden of showing good cause and
reasonableness.” McCabe, 233 F.R.D. at 687.
Defendants’ primary argument for staying discovery was their unfounded
belief that their motion to dismiss would prevail and dispose of the case, rendering
discovery moot. (Doc. 54 at ¶ 5; Doc. 65 at 3-5). When determining whether to stay
discovery in such a circumstance, the court need not rule on the motion to dismiss.
Cuhaci v. Kouri Grp., LP, No. 20-cv-23950, 2021 WL 1945819 (S.D. Fla. May 14,
2021) (citing Feldman v. Flood, 176 F.R.D. 651, 652 (M.D. Fla. 1997)). Rather, the
court should “‘take a preliminary peek’ at the merits of the motion to dismiss to see
if it appears to be clearly meritorious and truly case dispositive.” Id. But the court
here has already taken it a step further. Defendants’ motion to dismiss was so devoid
of merit that it was summarily denied.
Defendants’ additional arguments fare no better. They complained that
responding to Welsh’s discovery requests would be burdensome and duplicative due
to purportedly similar discovery requests in the three other cases. (Doc. 54 ¶ 3; Doc.
65 ¶ 3). But this assertion is a gross mischaracterization. In fact, Welsh’s discovery
requests explicitly limited responsive documents to those “not previously provided
in other litigation.” (Doc. 59 at 16; Doc. 61-1). And the mere fact defendants would
expend resources responding to discovery is not itself unusual or prejudicial. See
Blue Heron Com. Grp., Inc. v. Webber, No. 2:18-cv-467-FTM-29CM, 2018 WL
5014374, *1 (M.D. Fla. Oct. 16, 2018). Thus, for a host of reasons, the motion for
protective order is denied.
B. Welsh’s Motion to Compel
While defendants’ motion for protective order was pending, Welsh filed a
motion to compel defendants’ answers to interrogatories and responses to her
requests for production. Essentially, she argues that defendants’ motion was not selfexecuting, so their failure to timely respond constitutes a waiver of any objections.
This point is well taken. See M.D. Fla. Civil Discovery Handbook § VII.A (“The
mere filing of a motion for protective order does not . . . excuse the moving party
from complying with the requested or scheduled discovery.”). And given the
arguably frivolous nature of defendants’ motion to dismiss, the court agrees with
Welsh’s contention that the motion for protective order was nothing more than a
Regardless, the court has reviewed Welsh’s discovery requests and finds them
relevant, proportional, and not worthy of limitation under Rule 26(b)(2) or 26(c).
And the discovery responses are overdue. Thus, the motion to compel is granted. By
December 9, 2022, William and Kelly Martinez must respond in full to the
interrogatories by serving signed answers under oath; they will produce all
responsive, non-privileged documents and a privilege log for any responsive
documents withheld from production; and, they will respond to the requests for
admissions in conformity with Rule 36(a)(3)-(4).
C. Welsh’s Request for Sanctions
Having denied defendants’ motion for protective order and granted Welsh’s
motion to compel, the court must award Welsh her expenses related to both motions,
including attorney’s fees, unless any such award would be unjust. FED. R. CIV. P.
37(a)(5)(A), (B). Given the circumstances discussed above, the court finds that
expense-of-motion awards to Welsh for both motions is justified. By December 9,
2022, Welsh may file a declaration delineating her fees and expenses related to
opposing defendants’ motion for protective order and filing her motion to compel,
or she may file a notice certifying the parties have resolved the expense-of-motion
awards. Within fourteen (14) days of the filing of any such declaration, defendants
may file a response discussing the reasonableness of the fees and expenses requested
but not Welsh’s entitlement to them.
Accordingly, it is hereby ORDERED:
Defendants’ Motion for Protective Order (Doc. 54) is DENIED.
Welsh’s motion to compel and for sanctions (Doc. 61) is GRANTED.
The parties must comply with the deadlines set forth in this order.
Welsh’s request for leave to file a reply brief in support of her motion
to compel (Doc. 66) is DENIED as moot.
ORDERED on November 18, 2022.
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